Saturday, November 14th, 2009

The Things We Do For Love

United States v. Caraballo, No. 08-4640-cr (2d Cir. November 5, 2009) (Leval, Raggi, Livingston, CJJ)

Gilberto Caraballo was a large-scale drug supplier in the Sunset Park section of Brooklyn. In September of 2000, he started dating Quincy Martinez, former girlfriend of Jose Fernandez, a dealer who worked for Caraballo. Three months into their relationship, Martinez asked Caraballo to murder Fernandez because he had been abusive toward her. Caraballo answered, “Say no more.”

Caraballo recruited one of his former drug dealers, Aguilar, and Aguilar’s associate, Taylor, to help do the job. Caraballo had previously cut off Aguilar’s supply over an unpaid drug debt, but promised to forgive the debt and resume supplying to him in exchange for the hit. Taylor, who realized that his own sales would increase once Caraballo started supplying Aguilar again, agreed to help and was to receive $5,000 in cash or drugs.

Aguilar, Taylor and Caraballo did the deed and, as promised, Caraballo gave Taylor cocaine and ecstacy pills, forgave Aguilar’s drug debt and arranged for both of them to begin receiving drugs on consignment. As a result of this arrangement, Caraballo was convicted of violating 21 U.S.C. § 848(e)(1)(A), which makes it a crime for “any person engaging in” a specified drug crime to kill or solicit a killing.

On appeal, although he conceded that the evidence supported his conviction for the predicate drug offense, Caraballo argued that the evidence was insufficient to support a finding that he committed the murder while “engaging in” the drug conspiracy.

The circuit affirmed. It first noted that the statutory language – “engaging in” – would seem to require only a temporal connection between the murder and the drug crime. But the Second Circuit, like every other court, has concluded that the government must prove a “substantive, and not merely temporal, connection” between the murder and the drug predicate. This requirement saves the statute from a possible Commerce Clause challenge and furthers the law’s purpose, which is to “target drug-related killings.”

Previously, the court has held that the “engaging in” element is satisfied by proof that there was a drug-related motive for the killing, although the court has made clear that it does not have to be the “primary” motive, or even of equal importance to any non-drug-related motive. But here, the court rejected Caraballo’s argument that these precedents required that the government prove that the killing was, at least in part, in furtherance of the drug crime.

Rather, the court explained, those precedents are simply illustrations of one type of substantive connection; they do not hold that proof of a drug-related motive is the only way to establish it. Nor is there any legitimate policy reason for limiting the scope of the statute to cover only killings that are specifically motivated by the predicate drug crime.

With that as a background, the court had little trouble finding the evidence sufficient here. “[W]e see no reason why [the substantive connection] is not also proved by evidence that the defendant used qualified drug dealings to procure the murder.” Thus, here, while the motive for the killing – Caraballo’s romantic relationship with Martinez – was not drug-related, using the drug conspiracy’s proceeds as a tool to procure the killing was “sufficient to permit a reasonable jury to find that Caraballo killed Fernandez while ‘engaging in’ the charged drug conspiracy.”

In a footnote, however, the court reiterated its view – still dicta, since it has not yet come up – that a drug dealer who killed a spouse in a purely non-drug-related domestic dispute would not satisfy the “engaging in” requirement of § 848(e)(1)(A).

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